“Stand Your Ground” laws have been subject to considerable misunderstanding and derision, and often both. This is particularly evident in the characterization of the laws as “shoot first” (and ask questions later) laws and a “license to kill” by their critics.
In the highly polemical world of gun politics, it is difficult to find a neutral characterization of stand your ground laws. I do my best here to present my understanding of these laws as objectively as possible, and I welcome any corrections and elaborations.
What Stand Your Ground Laws Do
At issue with stand your ground laws is whether an individual has a legal obligation to retreat before using deadly force in self-defense. Stand your ground laws codify in state statutes (“black letter law” as opposed to case law or jury instructions) that individuals have no duty to retreat before defending themselves with force, provided that they have a legal right to be there and they are not committing a crime. For this reason, Masaad Ayoob has said that these laws are really “rescinding the retreat requirement” laws.
(It is important to note that in the 17 states which still retain a duty to retreat, that duty only exists if it can be done in complete safety. For example, if you are attacked while on crutches or are pushing your child in a stroller or walking with an elderly friend, you may not have a duty to retreat if you can convince a prosecutor or jury that you could not safely retreat under those conditions.)
Whether the use of force in a self-defense situation is justifiable must still be established in each case in which the stand your ground defense is invoked.
All of these elements can be seen in the Florida law that has since spread to a number of other states (in various ways):
“A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony” (776.013.3).
Whether a person who uses force, up to and including deadly force, acted reasonably is always the issue, whether or not stand your ground is invoked. Even if one does not have a duty to retreat, the use of deadly force in self-defense must be justifiable. That is, the person must convince a prosecutor or a jury that reasonable people in the same circumstances would believe they were in danger of death or great bodily harm. (Using, for example, the “AOJ Triad” that is sometimes taught in lethal force classes.)
Difference between Castle Doctrine and Stand Your Ground
Although some have argued that stand your ground laws can be seen as an extension of the Castle Doctrine from the home to public spaces, in practice, there are some crucial differences between them. It is true that traditionally Castle Doctrine has held that the duty to retreat does not apply in one’s own home. But Castle Doctrine also includes the additional presumption that anyone who has entered your home unlawfully with the purpose of committing a crime is de facto placing you and your loved ones’ lives in danger of death or great bodily harm. (I have previously written some about this in the Minnesota case of Byron David Smith.)
This presumption of reasonableness and justifiability of use of force can also be seen in the Florida statutes (which extend Castle Doctrine to an occupied vehicle):
“776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.”
Significantly, between this Castle Doctrine language and the stand your ground language in the Florida statute is a list of situations in which the presumptions of reasonableness in the justifiable use of force under the Castle Doctrine do not apply:
“(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.”
As attorney Andrew Branca demonstrates in his book, The Law of Self Defense, the way the general principles of duty to retreat, stand your ground, and Castle Doctrine are enacted in state statutes or applied in case law vary considerably from state to state.
Far from being a “license to kill,” all of these laws place limits on the ability of individuals in self-defense situations to “shoot first” and ask questions later. Whether individuals on the ground fully understand those limitations is an empirical question, and the well-known case of Marissa Alexander (discussed below) suggests that there are some very consequential mis-understandings of Castle Doctrine and stand your ground laws.
High Profile Cases (Possibly) Related to Stand Your Ground
Three recent, high profile cases – all in Florida, not coincidentally – have thrust stand your ground laws into the national spotlight.
Although George Zimmerman did not ask for a
stand your ground pre-trial self-defense immunity hearing – which, if successful, would have granted him immunity from prosecution – jurors in his trial for the February 2012 killing of Trayvon Martin did receive instructions that borrowed language from Florida’s stand your ground law. He was acquitted of second-degree murder. [UPDATED 6/26/2014: Thanks to Andrew Branca for the clarification]
Currently, Michael Dunn is on trial for killing Jordan Davis in a confrontation that began over loud music at a gas station convenience store in November 2012. Like Zimmerman, Dunn did not use the law to seek immunity from prosecution, but in his closing arguments, Dunn’s attorney invoked stand your ground as a basis for acquitting him of the charge of first-degree murder. Jurors began deliberations this week.
Most relevant to the issue of domestic violence that is the occasion for this post is the case of Marissa Alexander, who was convicted of aggravated assault with a deadly weapon and sentenced to a mandatory 20 years in prison under Florida law for using a firearm in the commission of a felony. Alexander fired a shot from her handgun either at her estranged husband, Rico Gray, or as a warning shot to get him to leave the house (depending on which side you believe). Although Alexander believed she did not have a duty to retreat under Florida law, her
stand your ground self-defense immunity motion was denied by a judge. The judge did not accept Alexander’s contention that she was in fear of death or great bodily harm because she left the house and went into the garage only to return with the gun she retrieved from her car. (Alexander is currently out of jail on bond and under house arrest while awaiting a new trial, granted to her on appeal due to improper jury instruction.) [UPDATED 6/26/2014: Thanks again to Andrew Branca]
The Right to Defend vs. the Home Presumption: The Efficacy of the Stand Your Ground Law on Florida Domestic Violence Cases, by Denise Crisafi of the University of Central Florida
The case of Marissa Alexander is not the only one in Florida in which someone in a domestic dispute has invoked the stand your ground defense to justify use of force against their spouse or partner. In this paper, presented at the annual meeting of the American Society of Criminology in November 2013, Crisafi investigates 13 such cases in the state of Florida between 2005 and 2012 (drawn from the Tampa Bay Times’ “Stand Your Ground” database).
Crisafi looks only at opposite sex relationships between spouses or partners (not between same sex couples or family members). Of these 13 cases, 8 of the defendants were female.
- In 5 of the cases (38%), a stand your ground defense was upheld and the accused granted immunity from prosecution under the law.
- In 7 of the cases, the stand your ground defense was not accepted and the defendant was found guilty (54%). 1 case was still pending at the time of the presentation.
So, in a minority of domestic disputes is a stand your ground defense accepted.
How does this compare to stand your ground cases in general? I examined the Tampa Bay Times database myself this week, which currently includes 214 adjudicated cases. In 33.6% of these cases, the defendant either plea bargained or was found guilty. Therefore, in two-thirds of the cases, the accused was either not charged, granted immunity, or acquitted.
This suggests that the stand your ground defense is more robust outside of domestic disputes.
This is not totally surprising just reading Florida’s law, in which the so-called “home presumption” can trump the presumption of the right to stand one’s ground. It is this very issue that Crisafi focuses on in her interpretation of these data.
Crisafi’s content analysis of the cases she selected finds the following themes:
- Use of a firearm overshadows stand your ground in domestic violence self-defense cases. All of the defendants who used a firearm were found guilty. Defendants who killed their partners using a knife or other sharp object were found guilty 50% of the time (2 out of 4 cases).
- Accurate accounts and lapse of time influence stand your ground in lethal domestic self-defense cases. In the 4 cases of homicide by knife/sharp object, defendants who either lied about what happened or left the situation and returned were convicted (this latter also applies to the Marissa Alexander case). Those who acted immediately in self-defense against an abusive partner did not go to trial.
- If a weapon isn’t used, stand your ground largely favors domestic violence victims. In three of four cases in which a weapon was not used, the stand your ground defense was legally efficacious (in one case not leading to acquittal but to a drastically reduced charge). The circumstances of these cases seemed to vary more than others, leading Crisafi to conclude that the absence of a weapon led the course to examine the contextual factors involved more.
It is difficult to systematically analyze a small number of cases, but Crisafi’s reading and classification of stand your ground defenses according to outcomes and circumstances is a suggestive starting point.
The use of firearms in self-defense is central to Gun Culture 2.0, but I think we need to bear in mind that once these cases are drawn up into the legal system, there can be systematic biases in their adjudication.